ACLU and vaccine mandates – an object lesson in the slippery slope to authoritarianism

The lessons from history should be kept in mind whenever we are told by government officials that “tough,” liberty-limiting actions are needed to protect us from dangerous diseases… Not all public health interventions have been benign or beneficial… Too often, fears aroused by disease and epidemics have encouraged abuses of state power. Atrocities, large and small, have been committed in the name of protecting the public’s health.

American Civil Liberties Union (ACLU) 2008

While vaccine mandates are not always permissible, they rarely run afoul of civil liberties when they involve highly infectious and devastating diseases like Covid-19… Covid-19 vaccine mandates — much like mask mandates — are public health measures necessary to protect people from severe illness and death.

— ACLU 2021

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Back in May 2020 when Donald Trump was still in office, the ACLU released a statement entitled “Coronavirus ‘Immunity Passports are not the Answer’” with the strapline “A system of immunity passports in the United States threatens to exacerbate racial disparities and harm the civil liberties of all”, which summarised the issue as follows:

As tempting as immunity passports may be for policymakers who want a quick fix to restart economic activity in the face of widespread suffering from the COVID-19 pandemic, they present both public health and civil rights concerns that cannot be overlooked. Immunity passports incentivize vulnerable people to contract the disease, and raise the prospect of another hierarchical system, separating us into two categories — those with COVID-19 immunity, who are given preferential access to employment, housing, or public accommodations — and those without. This division would likely worsen existing racial, disability, and economic disparities in America and lead people struggling to afford basic necessities to deliberately risk their health.

Click here to read the full ACLU statement written by Esha Bhandari and ReNika Moore, published on May 18th 2020.

However, by late March 2021 with Biden now in charge, the stance of the ACLU was beginning to soften. In an article entitled “There’s a Lot That Can Go Wrong With ‘Vaccine Passports” and a strapline that reads “Any proposal for vaccine credentials must be primarily paper-based, decentralized, and protect privacy”, Senior Policy Analyst, Jay Stanley, wrote that:

There is a difference between a standardized system for presenting proof of vaccination, and a digital system for doing so. With more and more of our credentials being displayed through apps on our phones — from airline boarding passes to concert tickets to gym memberships — it strikes many people as an obvious and overdue step to create a similar digital credential for those occasions when a person has to prove that they’ve been vaccinated. But digital credentials present a number of new potential problems, and we would oppose a vaccination credential system that does not meet three crucial criteria[.]

According to the ACLU, these “three crucial critera” are 1) It’s not exclusively digital; 2) It is decentralised and open source; and, and 3) It does not allow for tracking or the creation of new databases. What is missing, of course, is any concern over the limitation of civil liberties or violation of human rights due to the already creeping rollout of a universal mandatory vaccination regime.

The same piece published on March 31st concludes:

We don’t oppose in principle the idea of a requiring proof of vaccination in certain contexts. But given the enormous difficulty of creating a digital passport system, and the compromises and failures that are likely to happen along the way, we are wary about the side effects and long-term consequences it could have. We will be closely watching developments in this area.

But then, come September, the debate had significantly moved on from vaccine mandates (or ‘passports’) to demands for outright compulsory vaccination and the ACLU responded with the release of a new statement entitled “Civil Liberties and Vaccine Mandates: Here’s Our Take” above the extraordinary strapline “Far from compromising civil liberties, vaccine mandates actually further them…”:

At the ACLU, we are not shy about defending civil liberties, even when they are very unpopular. But we see no civil liberties problem with requiring Covid-19 vaccines in most circumstances.

With this staggering volte-face, the ACLU then goes on to say:

Here’s why civil liberties objections to Covid vaccine mandates are generally unfounded.

Vaccines are a justifiable intrusion on autonomy and bodily integrity. That may sound ominous, because we all have the fundamental right to bodily integrity and to make our own health care decisions. But these rights are not absolute. They do not include the right to inflict harm on others.

Concluding:

Even though the F.D.A. and independent medical experts have found Covid-19 vaccines to be extremely safe and highly effective, a sizable portion of the eligible population has chosen not to be vaccinated. In this context, Covid-19 vaccine mandates — much like mask mandates — are public health measures necessary to protect people from severe illness and death. They are therefore permissible in many settings where the unvaccinated pose a risk to others, including schools and universities, hospitals, restaurants and bars, workplaces and businesses open to the public.

Curiously, the ACLU piece had been originally released as an op-ed in The New York Times that you can find here except that it is hidden behind a paywall. Now, I refuse to pay the NYT but especially so to read the opinions of a non-profit civil rights advocacy group, which ought to be acting transparently in the public interest. But independent journalist, Glenn Greenwald, who quotes directly from the original NYT piece in his own article about it (more below), draws my attention to a line that the ACLU is evidently reluctant to repost on its own website (since I do not find it reproduced there):

Where a vaccine is not medically contraindicated, however, avoiding a deadly threat to the public health typically outweighs personal autonomy and individual freedom.

So it seems that “personal autonomy and individual freedom” are now of limited concern only to America’s self-appointed “civil liberties union”. And this fundamental shift, at least in their public stance, is made still more apparent once we reflect upon an earlier ACLU report specifically about pandemic response produced little more than a decade earlier.

Glenn Greenwald writes:

What makes the ACLU’s position so remarkable — besides the inherent shock of a civil liberties organization championing state mandates overriding individual choice — is that, very recently, the same group warned of the grave dangers of the very mindset it is now pushing. In 2008, the ACLU published a comprehensive report on pandemics which had one primary purpose: to denounce as dangerous and unnecessary attempts by the state to mandate, coerce, and control in the name of protecting the public from pandemics.

The title of the ACLU report, resurfaced by David Shane, reveals its primary point: “Pandemic Preparedness: The Need for a Public Health – Not a Law Enforcement/National Security – Approach.” To read this report is to feel that one is reading the anti-ACLU — or at least the actual ACLU prior to its Trump-era transformation. From start to finish, it reads as a warning of the perils of precisely the mindset which today’s ACLU is now advocating for COVID.

In 2008, the group explained its purpose this way: “the following report examines the relationship between civil liberties and public health in contemporary U.S. pandemic planning and makes a series of recommendations for developing a more effective, civil liberties-friendly approach.” Its key warning: “Not all public health interventions have been benign or beneficial, however. Too often, fears aroused by disease and epidemics have encouraged abuses of state power. Atrocities, large and small, have been committed in the name of protecting the public’s health.”

Indeed (as Greenwald quotes in the same article), the 2008 ACLU report explicitly warns against use of “coercion and brute force”:

The lessons from history should be kept in mind whenever we are told by government officials that “tough,” liberty-limiting actions are needed to protect us from dangerous diseases. Specifically: coercion and brute force are rarely necessary. In fact they are generally counterproductive—they gratuitously breed public distrust and encourage the people who are most in need of care to evade public health authorities. On the other hand, effective, preventive strategies that rely on voluntary participation do work.

Continuing perceptibly:

Lessons from History: American history contains vivid reminders that grafting the values of law enforcement and national security onto public health is both ineffective and dangerous. Too often, fears aroused by disease and epidemics have justified abuses of state power. Highly discriminatory and forcible vaccination and quarantine measures adopted in response to outbreaks of the plague and smallpox over the past century have consistently accelerated rather than slowed the spread of disease, while fomenting public distrust and, in some cases, riots.

Click here to read Glenn Greenwald’s full article entitled “The ACLU. Prior to COVID, Denounced Mandates and Coercive Measures to Fight Pandemics”, published on September 7th.

From forthright distrust in the potential abuses of state power drawn from historical precedents, to dithering concerns over the appropriate form that vaccine passports might take, to full-blown advocacy for the introduction of forcible programmes of vaccination; the ACLU’s growing assent to authoritarianism has been an exceedingly rapid one. And this is how tyranny has always arisen: step-by-step, measure-by-measure, with every encroachment on rights habituating the public to the next, and every violation of freedom justified by the last.

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Filed under analysis & opinion, police state, USA

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